IGT Solutions P.Ltd, Gurgaon V. DCIT, Circle-12(1), New Delhi

ITA 1096/DEL/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 2920 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 15-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHAILESH KUMAR
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DLEHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER ITA NO. 1096/DEL/2018 ASSESSMENT YEAR: 2012-13 IGT SOLUTIONS PVT. LTD., VS. DCIT, CIRCLE 12(1), BLOCK 3B, DLF CORPORATE PARK, NEW DELHI. DLF CITY, PHASE-III, GURGAON. PAN : AAACI5114J (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY: SH. SHAILESH KUMAR, SR.DR DATE OF HEARING: 23.02.2021 DATE OF ORDER : 23.02.2021 ORDER PER K. NARASIMHA CHARY, J.M. CHALLENGING THE ORDER DATED 30.11.2017 PASSED BY TH E LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-22, NEW DELHI (THE LD. CIT(A), FOR THE ASSESSMENT YEAR 2012-13, IGT SOLUTIONS PVT. LTD .(THE ASSESSEE), PREFERRED THIS APPEAL. 2. BRIEF FACTS ARE THAT THE ASSESSEE IS A COMPANY E NGAGED IN THE BUSINESS OF PROVIDING INFORMATION TECHNOLOGY SOFTWARE SOLUTI ONS AND BPO SERVICES TO TRAVEL INDUSTRY. FOR THE ASSESSMENT YEAR 2012-13, T HEY HAVE FILED THEIR RETURN OF INCOME ON 26.11.2012 DECLARING LOSS AT RS.1,92,6 8,836/-. ASSESSMENT U/S. 143(3) OF THE INCOME-TAX ACT (THE ACT FOR SHORT) WASCOMPLETE BY ORDER DATED 11.03.2016 ACCEPTING THE LOSS STATED BY THE A SSESSEE AT 2 RS.1,92,68,836/-. THE ASSESSEE, HOWEVER, PREFERRED AN APPEAL BEFORE THE LD. CIT(A) EXPRESSING THE GRIEVANCE THAT ENTIRE CREDIT OF TAX PAID AND CLAIMED BY THE ASSESSEE WAS NOT ALLOWED. 3. LEARNED CIT(A), HOWEVER, IN THE IMPUGNED ORDER O BSERVED THAT INSPITE OF FOUR NOTICES ISSUED TO THE ASSESSEE ON 29.05.201 7, 30.08.2017 AND 13.09.2017, THE ASSESSEE DID NOT ENTER APPEARANCE A ND PURSUED THE MATTER AND THEREFORE, OPINING THAT THE ASSESSEE HAD NO WIS H TO PURSUE THE APPEAL, HE DISMISSED THE SAME. 4. ASSESSEE, THEREFORE, FILED THIS APPEAL ON THE GROUN DS THAT THE IMPUGNED ORDER PASSED IN THIS CASE IS AGAINST THE P RINCIPLES OF NATURAL JUSTICE; THAT OBSERVATION OF LD. CIT(A) THAT THE AS SESSEE DID NOT COMPLY WITH THE NOTICES AND DID NOT FILE ANY SUBMISSIONS IS FAR FROM TRUTH; AND THAT THE NON-ADJUDICATION OF ISSUES ON MERITS BY THE CIT(A) IS ERRONEOUS. 5. WHEN THE MATTER IS CALLED TODAY FOR HEARING, THERE IS NO REPRESENTATION ON BEHALF OF THE ASSESSEE. THE NOTI CE SENT TO THE ASSESSEE BY REGISTERED POST TO THE ADDRESS FURNISHED IN FORM NO.36. WHEN THE NOTICE IS SENT TO PROPER ADDRESS OF THE ASSESSEE AS PROVIDED BY THEM IN FORM NO.36 THROUGH REGISTERED MAIL WITH POSTAGE PRE PAID, IF THE ASSESSEE WAS TO BE FOUND THEREIN, THE NOTICE WOULD HAVE BEEN SERVED. IF FOR ANY REASON THE ASSESSEE IS ABSENT TEMPORARILY, IT IS FO R THE ASSESSEE TO MAKE ARRANGE WITH THE POSTAL DEPARTMENT EITHER TO DELIVE R IT TO SOME OTHER PERSON, OR TO RE-DIRECT IT TO AN ADDRESS WHERE THE ASSESSEE COULD BE FOUND OR TO DETAIN THE MAIL TILL THE ASSESSEE COMES BACK AND CLAIMS THE SAME. EVEN IF THE ASSESSEE SHIFTS FROM THAT PLACE, IT IS FOR THE ASSESSEE TO NOTIFY THE NEW ADDRESS EITHER TO THE REVENUE OR TO THE TRI BUNAL OR TO THE POSTAL 3 DEPARTMENT. OBVIOUSLY THE ASSESSEE HAD NOT TAKEN A NY OF THESE STEPS AND THE NON-SERV ICE OF NOTICE IN THIS MATTER IS SOLELY ATTRIBUTABLE TO THE CONDUCT OF THE ASSESSEE. IN THESE CIRCUMSTANCES, W E FIND NO OPTION, BUT TO PROCEED WITH THE MATTER, BASING ON THE MATERIAL AVA ILABLE ON RECORD. 6. IT IS THE SUBMISSION OF THE LD. DR THAT WHEN THE ASSESSEE DOES NOT SHOW ANY INTEREST IN PURSUING THE MATTER, THE LD. C IT(A) HAD NO OPTION BUT TO DEAL WITH THE SAME IN THE ABSENCE OF THE ASSESSEE; AND THAT THE ASSESSEE CANNOT COMPLAIN FOR THE CONSEQUENCES OF ITS OWN CON DUCT. 7. WE HAVE GONE THROUGH THE RECORD IN THE LIGHT OF THE SUBMISSIONS MADE BEFORE US. A BARE PERUSAL OF THE IMPUGNED ORDE R SHOWS THAT THE LD. CIT(A) DID NOT REFER TO ANY MERITS OF THE ASSESSEE S CLAIM BUT MERELY BECAUSE OF THE ABSENCE OF THE ASSESSEE, THE APPEAL WAS DISM ISSED IN LIMINE. WE, HOWEVER, ARE OF THE VIEW THAT THE ABSENCE OF ASSESS EE WILL NOT DETER THE FIRST APPELLATE AUTHORITY FROM DISPOSING OF THE APPEAL ON MERITS. IT IS AS WELL AVAILABLE TO THE LD. CIT(A) TO LOOK INTO THE PAPERS THAT ARE AVAILABLE ON RECORD AND APPRAISE THE MERITS OF THE CASE TO REACH A REAS ONABLE CONCLUSION DETERMINING THE JUST TAX LIABILITY OF THE ASSESSEE. LD. CIT(A) SHOULD HAVE CONSIDERED THE FACT THAT IN THE ABSENCE OF ASSESSEE ALSO THE PAPERS WILL SPEAK FOR THEMSELVES. INSTEAD OF DISMISSING THE APPEAL IN LIMINI, THE LD. CIT(A) SHOULD HAVE TAKEN LITTLE MORE EFFORT AND CARE TO DE LVE DEEPER INTO THE MERITS OF THE CASE AND SHOULD HAVE RECORDED THE FOR REASON S TO DISMISS THE APPEAL. THIS EXERCISE SHOULD HAVE BEEN UNDERTAKEN BY THE LD . CIT(A) BECAUSE BEING A STATUTORY APPELLATE AUTHORITY, IT IS NOT OPEN FOR H IM TO DISMISS THE APPEAL FOR DEFAULT WHICH POWER IS NOT AVAILABLE TO HIM. 8. WE ARE, THEREFORE, OF THE CONSIDERED OPINION THA T EVEN IN THE ABSENCE OF THE ASSESSEE, IT IS ALWAYS OPEN FOR THE LD. CIT( A) TO LOOK INTO THE MATTER 4 AND TO FIND WHETHER OR NOT ANY REASONS ARE THERE EI THER TO CONFIRM OR REVERSE THE CONCLUSION OF THE A.O. ON THE CLAIM OF ASSESSEE . WE CONSEQUENTLY FIND THAT IT IS A FIT CASE TO SET ASIDE THE IMPUGNED ORD ER AND RESTORE THE APPEAL TO THE FILE OF THE LD. CIT(A) TO PASS A REASONED ORDER BY GIVING A REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT IMMEDIATELY ON CONCLUSION OF HEARING IN VIRTUAL MODE ON THIS 23RD DAY OF FEBRUAR Y, 2021. SD/- SD/- (R.K. PANDA) (K. NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 23/02/2021 AKS